- (1.) THIS appeal is directed against the judgment and decree dated 24.05.2010 passed by District Judge, Pali, whereby, the appeal filed by the appellant -plaintiff against judgment and decree dated 04.12.2007 passed by Additional Civil Judge (Junior Division) No.1, Pali has been dismissed.
(2.) THE facts in brief may be noticed thus : the appellant - plaintiff filed a suit for declaration and permanent injunction with the averments that ancestral property of plaintiff and defendant No.3 was situated at village Sonai Manji, wherein, the plaintiff, defendant No.3 and other ancestors were living for last 100 -150 years; at the back of the said premises on the western side a 6 ft. broad lane regarding the entire width of the plot was situated; after the said lane, land of defendant Nos.1 and 2 was situated; a house built about 40 -50 years back was situated on the said land of defendant Nos.1 and 2; the disputed 6 ft. lane was marked as ABCD in the enclosed map; it was claimed that the present construction was existing for last 25 years, wherein, on the ground floor 6 ventilators and 6 windows on the first floor were situated and the rain water used to fall in the said lane and the said lane was being used for the purpose of maintenance of the wall; the plaintiff was also getting light and air from the said lane and, therefore, he has right of easement; it was claimed that the defendant Nos.1 and 2 was seeking to encroach on the said lane and was intending to raise construction and, therefore, on 03.10.2000 he started digging for foundation and when despite plaintiff's request, they did not accede to the same, a complaint was made in the police station; ultimately it was prayed that the land in question be declared as lane and that the plaintiff has the right to use the said land for light and air and to use the same for repair and maintenance of the wall and for outlet of the rain water and seeking a restraint against the defendants from encroaching, raising construction and possessing the land in question. A written statement was filed by defendant Nos.1 and 2 and the averments contained in the plaint were denied; the existence of lane ad measuring 6 ft. was denied; the averments regarding the construction raised by the plaintiff and defendant No.3 about 25 years back and having ventilators and windows alongwith right of rain water falling in the lane were all denied; when the plaintiff wanted to open the windows, a report was made to the police, wherein, the plaintiff and defendant No.3 claimed the lane to be public lane and, therefore, there is no question of any easement; the defendants have raised construction after seeking permission from the Gram Panchayat.
(3.) THE trial court framed seven issues and after evidence was led by the parties, it was came to the conclusion that from the Commissioner report, which was obtained at the instance of plaintiff himself, no lane at the back of plaintiff's house has been indicated and the land has been indicated as Government land and, therefore, there was no question of existence of any lane. Further, the plaintiff failed to point out as to from where the land starts and where it ends and was also unable to give the length and width of the said lane and came to the conclusion that no lane exists as claimed by the plaintiff. Regarding the easement, the trial court came to the conclusion that the plaintiff has failed to prove that the construction was raised 25 years back and in fact the same was raised about 6 -7 years back only and, therefore, there was no question of claiming any easement. In view of the said findings, the trial court dismissed the suit.;